State v. Fay. ICA s.d.o., filed 10/31/2023 [ada], 153 Haw. 305. Application for Writ of Certiorari, filed 01/09/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/23/2024 [ada].

550 P.3d 1163, 154 Haw. 305

• Court: Hawaii Supreme Court
• Decided: June 17, 2024
• Docket: SCWC-22-0000056
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 17-JUN-2024 10:11 AM Dkt. 7 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

MELISSA FAY, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 2DTA-21-00637)

JUNE 17, 2024

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.

OPINION OF THE COURT BY EDDINS, J.

This case is about a court’s statutory authority to order a

criminal defendant subject only to an independent restitution

order to attend ongoing proof of compliance hearings. *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

I.

Melissa Fay drove her car into a tree. The State

prosecuted her for an open container, intoxicated driving,

inattention to driving, and driving without insurance. She

resolved her case by plea agreement. It did not include

imprisonment or probation. Fay agreed to pay a freestanding

order of restitution.

The District Court of the Second Circuit followed the plea

deal. Then it ordered indefinite compliance hearings to monitor

Fay’s restitution payments. Fay protested. She unsuccessfully

argued that Hawaiʻi’s restitution enforcement statute, Hawaiʻi

Revised Statutes (HRS) § 706-644 (2014 & Supp. 2021), limits the

court’s authority.

Fay appealed.

The Intermediate Court of Appeals agreed with the district

court. It held that an independent order of restitution by

itself empowers a criminal court to retain jurisdiction over a

person who owes restitution. Setting recurrent proof of

compliance hearings fell within a court’s general power to

enforce its orders, the ICA ruled.

We conclude that the district court exceeded its statutory

authority. Because HRS § 706-644, the specific law relating to

restitution enforcement, controls over the court’s general

powers to enforce judgments, we hold that the court may only

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order a compliance hearing regarding restitution payments if a

defendant is on probation or the defendant “defaults” on payment

per HRS § 706-644(1).

II.

In July 2021, Fay drove home from a bar. She crashed her

car into a tree. Maui Police arrived and arrested her.

The Department of the Prosecuting Attorney, County of Maui

(State) charged Fay with four crimes: (1) storage of an open

container, HRS § 291-3.3(a) (2020); (2) operating a vehicle

under the influence of an intoxicant (OVUII), HRS § 291E-

61(a)(1) and (b)(1) (2020 & Supp. 2021); (3) inattention to

driving, HRS § 291-12 (2020); and (4) no motor vehicle

insurance, HRS § 431:10C-104(a) (2019).

The State and Fay reached a plea agreement. The State

dismissed the open container charge. Fay pled no contest to

OVUII and no insurance. As to count 3, inattention to driving,

the State amended it to criminal property damage in the fourth

degree, HRS § 708-823 (2014). Fay pled no contest. She also

agreed to pay reasonable and verified restitution. See HRS

§ 706-646 (2014 & Supp. 2019) (“The court shall order the

defendant to make restitution for reasonable and verified losses

suffered by the victim or victims as a result of the defendant’s

offense when requested by the victim.”).

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Kahului Auto Sales, Inc., who owned the car Fay wrecked,

wanted restitution. In a victim claim report, the Judiciary’s

Monetary Restitution Program recommended that Fay pay Kahului

Auto Sales $6,504. Fay and the State agreed to that amount.

They executed an independent restitution order prepared by the

prosecution. The independent order – commonly called a

freestanding order - referenced HRS § 706-647 (2014).

District Court Judge Lauren Akitake asked Fay what she

could afford to pay. Fay said $50 per month. The court ordered

her to pay that amount.

On her own initiative, Judge Akitake ordered Fay to return

to the district court in six months. The court told Fay she

would have ongoing proof of compliance hearings until she paid

off the restitution. “[I]t may take awhile,” the court advised

Fay. (True, at $50 per month, eleven years.)

Fay’s attorney objected to setting future hearing dates.

Counsel explained that once the district court entered final

judgment and the independent restitution order, its jurisdiction

over Fay ended. Counsel pointed out that HRS § 706-644 does not

give the court an immediate, ongoing supervisory power over a

defendant sentenced only to a freestanding order of restitution.

Rather, a victim may initiate civil enforcement of the order,

or, if the defendant defaults, “the court, upon the motion of

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the prosecuting attorney or upon its own motion” may order them

to appear. HRS § 706-644(1).

Counsel added that apparently the Second Circuit stood

alone as the only circuit to make non-probation defendants

continually return to criminal court after signing a

freestanding restitution order. The district court was

unswayed.

Counsel also leveled a constitutional challenge. He said

due process forbids the court from retaining years-long

jurisdiction over an indigent defendant who committed a petty

misdemeanor offense. The district court rejected that argument,

too.

In a summary disposition order, the ICA sided with the

State. The ICA affirmed the district court, concluding that it

possessed “post-judgment jurisdiction to enforce its order that

Fay pay restitution.”

The ICA reasoned that the district court has the general

power to enforce its judgments per HRS § 604-7 (2016) (“The

district courts may: . . . (4) Enforce judgments; and punish

contempts according to law”). Then the ICA observed that HRS

§ 706-644, the law that lets victims enforce restitution

civilly, aspired to give victims an additional enforcement

mechanism, not an exclusive one. Thus, it concluded, “[t]here

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is no language anywhere in the statutes or the commentary

indicating that the Legislature intended to divest the district

courts presiding over criminal cases from jurisdiction over

enforcement of restitution orders.”

Fay applied for cert, and we accepted.

Fay’s briefing and cert application argue that the district

court’s compliance hearings are unconstitutional. In Fay’s

view, the ongoing hearings create “two classes of defendants:

those who can afford to pay restitution and end their criminal

cases, and people like Ms. Fay who cannot and are required to

come back to the courthouse for years on end.” Because the

district court’s compliance hearings lack statutory

authorization, it is unnecessary to decide Fay’s constitutional

claims.

III.

The authority to order restitution flows from HRS §§ 706-

605(7) (2014 & Supp. 2016) and 706-646. Those two statutes

govern when restitution is required, who is entitled to receive

it, and how the court determines the amount, time, and manner of

payment.

Hawaiʻi law provides multiple ways to order restitution.

For instance, as a condition of probation. HRS § 706-624(1)(g)

(2014 & Supp. 2016). Or, as an independent (or freestanding)

order. HRS § 706-644; see also State v. Feliciano, 103 Hawaiʻi

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269, 273, 81 P.3d 1184, 1188 (2003) (differentiating between

these types). Fay did not receive probation; the freestanding

order method applies to her.

HRS § 706-644 provides two mechanisms to enforce a

freestanding restitution order. A civil court may enforce the

order. HRS § 706-644(5). Or, if the defendant defaults, the

district court may arrest and imprison the person. HRS § 706-

644(1). Unless the person defaults, the law doesn’t permit the

district court to do anything. The criminal case is over.

HRS § 706-644(1) describes what may happen process-wise

when a defendant falls behind, or doesn’t pay, restitution per a

freestanding order:

When a defendant is sentenced pursuant to section 706-605, granted a conditional discharge pursuant to section 712- 1255, or granted a deferred plea pursuant to chapter 853, and the defendant is ordered to pay a fee, fine, or restitution, whether as an independent order, as part of a judgment and sentence, or as a condition of probation or deferred plea, and the defendant defaults in the payment thereof or of any installment, the court, upon the motion of the prosecuting attorney or upon its own motion, may require the defendant to show cause why the defendant’s default should not be treated as contumacious and may issue a summons or a warrant of arrest for the defendant’s appearance. Unless the defendant shows that the defendant’s default was not attributable to an intentional refusal to obey the order of the court, or to a failure on the defendant’s part to make a good faith effort to obtain the funds required for the payment, the court shall find that the defendant’s default was contumacious and may order the defendant committed until the fee, fine, restitution, or a specified part thereof is paid.

HRS § 706-644(1) (emphases added).

Titled “Consequences of nonpayment; imprisonment for

contumacious nonpayment; summary collection,” HRS § 706-644(1)

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has harsh outcomes for those who do not meet criminal court

financial commitments. Unless a person can show they have made

“a good faith effort” to pay a fine, fee or restitution, the

court “shall find that the defendant’s default was

contumacious.” Id. After that finding of stubborn defiance,

the court “may order the defendant committed” until they pay up

or their financial commitment is converted to time served. HRS

§ 706-644(1), (3).

HRS § 706-644(1) only allows restitution compliance

hearings upon a default, then a motion, then a hearing. Setting

a compliance hearing at the outset precociously upends the

statutory process. Since the district court scheduled a court

appearance for Fay when it sentenced her, it erred.

HRS § 706-644(1) conditions criminal supervision of a non-

probationary defendant’s restitution payments on default. For

good reason. Criminal financial obligations “prolong[] criminal

justice oversight, creating a type of shadow control that

surpasses the original sentence.” Devah Pager, et al.,

Criminalizing Poverty: The Consequences of Court Fees in a

Randomized Experiment, American Sociological Review 4 (2022),

https://justicelab.columbia.edu/sites/default/files/content/Crim

inalizing%20Poverty.pdf [https://perma.cc/YZ5S-X6HC]. The

impacts are proportionally larger for misdemeanor defendants;

their underlying sentences are brief, but court supervision can

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last for years. Id. The U.S. Department of Justice warns that

indigent defendants (like Fay) “face repeated, unnecessary

incarceration for nonpayment of fines and fees.” U.S. Dep’t of

Justice, Dear Colleague Letter to Courts Regarding Fines and

Fees for Youth and Adults 2 (2023)

https://www.justice.gov/opa/press-release/file/1580546/dl

[https://perma.cc/GW3X-LE4X].

We base our decision on HRS § 706-644. Still, we note that

from-the-outset court monitoring of freestanding restitution

orders unnecessarily burdens defendants and wastes judicial

resources.

Neither a court’s general power to enforce its judgments

nor the availability of civil enforcement per HRS § 706-644(5)

alter our analysis.

For sure, a court may enforce its judgments. Otherwise, a

judgment has little real value. HRS § 604-7 provides a district

court’s general power: “[t]he district courts may: . . . (4)

Enforce judgments; and punish contempts according to law.”

Specific statutes, though, control over general ones.

Hoʻomoana Found. v. Land Use Comm’n, 152 Hawaiʻi 337, 344, 526

P.3d 314, 321 (2023). HRS § 706-644 is a specific statute

relating to “consequences of nonpayment” for a court-ordered

“fee, fine or restitution.” HRS § 706-644’s treatment of

restitution orders is more specific than HRS § 604-7’s general

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power. So HRS § 706-644 and the restitution-related laws

triumph to the extent that those laws conflict with HRS § 604-7.

HRS § 604-7 does not empower courts to hold restitution

compliance hearings outside HRS § 706-644’s parameters.

Similarly, the option of civil enforcement does not enlarge

the district court’s post-sentencing criminal jurisdiction. HRS

§ 706-644(5) allows crime victims to collect restitution “in the

same manner as a judgment in a civil action.” Since 1998, the

legislature has provided victims with a “‘fast track’ ability to

be compensated for their losses by allowing them to enforce the

criminal restitution order as a civil judgment, using all of the

civil collection remedies.” Conf. Comm. Rep. No. 89, in 1998

House Journal, at 986.

HRS § 706-644(5) empowers the victim, not the district

court. The law does not allow the district court itself to

convert a freestanding restitution order into a civil judgment.

The victim (or the State) must act. State v. Johnson, 92 Hawaiʻi

36, 44, 986 P.2d 987, 995 (App. 1999). And because there is a

tailor-made, civil-judgment-like restitution order, it’s not

hard to enforce in civil court. This is an alternative avenue –

it does not expand the district court’s criminal jurisdiction.

We apply HRS § 706-644(1)’s plain language. There are only

two situations where a court injects itself as a post-judgment

enforcer of a restitution order involving an unsupervised former

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defendant: compliance hearing upon default, or civil enforcement

by the victim or State.

To hold otherwise twists common sense. It stretches Fay’s

probation-like obligation to appear in court well past the

maximum six-month probation term for criminal property damage in

the fourth degree, her only probation-eligible offense. HRS

§§ 708-823, 706-623(1)(d) (2014 & Supp. 2021). We have

previously expressed fairness concerns when ongoing court

supervision may result in “combined terms of imprisonment far in

excess of the maximum term for [a defendant’s] underlying

misdemeanor crime.” State v. Agdinaoay, 150 Hawaiʻi 223, 227-28,

500 P.3d 408, 412-23 (2021) (overturned in part by statute).

If Fay keeps pace with the restitution order - paying

$6,500 in $50 monthly increments (130 payments) - it will take

her nearly eleven years to complete restitution, surpassing the

ten-year probation period for a class A felony. HRS § 706-

623(1)(a). If the district court continues to order Fay to

appear in court every six months, she may have to return to

court 21 times without ever being placed on the six-month period

of probation for her petty misdemeanor conviction.

Courts presume the legislature does not intend absurd

outcomes, so courts interpret laws to avoid unsound,

incongruous, or irrational results. State v. Haugen, 104 Hawaiʻi

71, 76, 85 P.3d 178, 183 (2004). We do so here.

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IV.

We vacate the ICA’s judgment on appeal.

Benjamin E. Lowenthal /s/ Mark E. Recktenwald (on the briefs) /s/ Sabrina S. McKenna for petitioner /s/ Todd W. Eddins Renee Ishikawa Delizo /s/ Lisa M. Ginoza (on the briefs) for respondent /s/ Vladimir P. Devens